I am currently on FMLA leave due to my pregnancy. I have taken time, approximately 1 day every week or two due to sickness related to the pregnancy. I was recently given a warning that said my job performance is not adequate. Even though the warning didn't state that the performance problems are due to my absences, they are directly related to me not being there to perform my duties (i am a budget analyst). I have never had performance problems before. When I first began getting sick, I asked to be given remote access so that I could work from home and not fall behind. I was told that this was only available to employees that had been with the department for a certain period of time. Recently I found out that a person with less senority than me and in the same position was given remote access. If I am not allowed to make up work from home when I am able to, there is no way my performance can remain at the same level as if I was never absent. The warning said that any more performance issues would lead to termination. I am also being sent to the employer's doctor for an evaluation. Do I have any recourse in this matter? I do not want to lose my job, but I am having difficulty in this pregnancy.

FMLA only protects you from termination due to the absences that are covered under FMLA. It does not protect you from being termed for other reasons.

Have you raised a relationship between your performance issues and your protected leave?

Yes, it was discussed in the warning meeting. I have not addressed it formally in writing. Should I?

Yes, you should. While they are not obligated to EVER accept poor performance, if you should file a claim for FMLA violations at some future date you will be on stronger ground if you have been able to tie the performance to the FMLA. I'm not offering you any guarantees; I'm not saying you have a FMLA violation claim to bring. I'm telling you how you can best protect yourself.

Is the problem just the quantity of work or the qualifty of work? Taking one day off every week or two shouldn't affect the quantity that much. If you are being told you should not be working those days when you are unable to make it into the office, your employer doesn't have to allow you to work anyway, even if it is from home.

Let your HR representative know that you believe that your warning is directly related to your FMLA protected pregnancy. You do appear to have recourse for raising a EEOC claim should they terminate you. What would hurt your claim is if the specific thing that they are warning you about is shown not to be directly related to your absence or pregnancy. Especially if you have received verbal and/or written warnings about the same thing prior to the pregnancy. As to the other employee with less seniority allowing to work from home, does that employee do the exact same work? Are they on FMLA? You are either covered by intermittent FMLA or concurrent FMLA and therefore covered, however, while you are working, either from home or in the office, you are not covered; you are treated like every other employee.